The plaintiff in this case was duly appointed guardian of the persons and estates of her two children, Maria Williams and Edward S. Williams, and has been duly authorized by the Court of Probate of the town of Scituate, for better investment, to sell, at private sale, the real estate of her wards. Under this authority, she entered into a contract, in writing, with the defendant, for the sale of the land described in the bill. By *Page 151 this contract, the defendant agreed to purchase the same, and to pay therefor the sum of $3000 on the delivery of a deed thereof, making a good and unencumbered title thereto. The defendant now refuses to perform this contract on his part, and by his answer submits that he ought not to be compelled to do so, because, as he says, the complainant cannot make a good and unencumbered title. The title of the wards to the land in question, as set forth in the answer, is derived to them by the last will and testament of their great-grandfather, Elisha Williams, and from that only, and under the following provision: —
"I give and devise to my said grandson, Elisha Williams, son of my said son, John S. Williams, for and during the term of his the said Elisha's, natural life, all my real estate lying," c., (describing the land,) "to remain to him, the said Elisha, for and during the term aforesaid.
"I give and devise to the lawful issue of my said grandson, Elisha Williams, after the termination of the life estate herein, given to said Elisha, my said real estate," (same land,) "to be and remain to such issue, in equal portions, and to their heirs and assigns forever; but if my said grandson, Elisha Williams, shall die leaving no lawful issue, then I give and devise said real estate," c., "to my two grandsons, Stephen S. Williams and William Mathewson Williams, in equal portions, and to their heirs and assigns forever."
The first objection to the title of the wards is, that they have, under the provisions of the will, but an estate tail, which cannot be barred during their minority. The devise to Elisha Williams is for life, and the remainder is, by the subsequent clause, given over to the issue generally of the said Elisha; and by the rule in Shelley's case, such a devise would vest in the first devisee an estate tail. In this case, the estate is given over to the issue, to hold to them, their heirs and assigns, giving to them the remainder in fee simple. Our statute of wills declares, that "a devise for life to any person and to the children or issue generally of such devisee in fee simple, shall not vest a fee tail estate in the first devisee, but an estate for life only, and the remainder shall, on his decease, vest in the children or issue generally, agreeably to the direction of such will." The devise here, therefore, could *Page 152 not create a fee tail estate in Elisha Williams, the first devisee. His estate was for life only; and the remainder must vest in fee simple in his issue, if any such there should be; and in the contingency that there should be no person answering that description, and so this remainder fail, the testator has, by the subsequent clause, directed that the fee shall, on the death of the first devisee, pass to his brothers. But there were issue of Elisha Williams, the tenant for life, in whom the estate in remainder might vest, and in whom it has vested, viz., the wards of the plaintiff, as the statute and the direction of the will require.
A second objection suggested to this title of the wards is, that the title has been forfeited under the condition imposed upon the estate for life. This condition was, that the tenant for life should pay into the hands of Elisha Harris, appointed a trustee for that purpose, yearly, the sum of twenty-five dollars. This annuity was not paid. The arrears amounted, in 1841, to the sum of $211.77, no part of which has ever been paid. It is suggested, that the life estate, by the forfeiture, was destroyed before the birth of issue, and before the remainder could, by law, vest, and so the remainder failed for want of this estate to support it.
By the failure to pay, and suffering the annuity to be in arrear, the life estate became liable to forfeiture; and had the proper proceedings been taken to avoid the estate for this cause, (and equity had not relieved against it, as it might,) it might have been and would have been destroyed. In order to the forfeiture in such case, however, it is necessary that there should be an entry for condition broken, or claim by the heirs for the purpose of avoiding the estate. Co. Lit. § 247; 2 Bl. Com. 135; Cruise Digest, Ch. xxxii. § 30. No direct claim, and no entry were ever made for the forfeiture of this estate while it existed; but it remained subsisting in the donee until it expired by its own limitation, upon his death, and until, by the terms of the will, the remainder vested in his issue.
But, again, it is suggested against the title of the wards, that it is encumbered with the unpaid annuity, and that this annual sum is a charge upon their estate. In looking at the condition, it will be seen, that the charge is upon the life estate only. The devise of the life estate, and that only, is, by the express language *Page 153 of the will, made upon the condition, that this annual sum be paid. The remainder is not mentioned in the condition referred to, so that whenever that estate vested, it vested in the devisees unencumbered.
We see no reason, therefore, why a good and unencumbered title may not be made by the plaintiff, and direct a decree to be entered in the usual form, compelling the defendant to complete his purchase.